81 F.

3d 313

Charles FRAZIER, Plaintiff-Appellant,

v.
Thomas A. COUGHLIN, III, Commissioner of the Department
of
Corrections for New York; Robert Mitchell, Superintendent
of Eastern New York Correctional Facility; George Ellison,
Lieutenant, an Employee of the New York State Department of
Corrections for New York State; John Doe, and/or Jane Doe,
Employee of the New York State Department of Corrections;
R.J. Cunningham, Deputy Superintendent of Security at
Eastern New York Correctional Facility; Louis F. Mann,
Superintendent of Shawangunk Correctional Facility; Robert
Cunningham, Senior Counselor and Program Coordinator for
The
Close Supervision Unit (CSU) at Shawangunk Correctional
Facility; John Doe, II, A Lieutenant at Shawangunk
Correctional Facility, Defendants-Appellees.
No. 562, Docket 94-2768.

United States Court of Appeals,

Second Circuit.
Argued Jan. 24, 1996.
Decided April 10, 1996.

Appeal from a judgment of the United States District Court for the
Northern District of New York, Neal P. McCurn, District Judge,
dismissing plaintiff's claims that he was deprived of his right to procedural
due process under the Fifth and Fourteenth Amendments, in violation of
42 U.S.C. 1983, 1985 and 1986.
Charles Frazier, Wallkill, NY, Pro Se.
Dennis C. Vacco, Attorney General of the State of New York, Albany,
NY (Peter H. Schiff, Deputy Solicitor General, Peter R. Crary, Assistant

Attorney General, Patrick Barnett-Mulligan, Assistant Attorney General,

on the brief), for Defendants-Appellees.
Before JACOBS, LEVAL and PARKER, Circuit Judges.
PER CURIAM:

Plaintiff-appellant Charles Frazier, an inmate in the custody of the New York

State Department of Correctional Services, appeals from a decision of the
United States District Court for the Northern District of New York (McCurn,
J.) that granted judgment as a matter of law in favor of the defendants pursuant
to Fed.R.Civ.P. 52(c). Frazier's pro se complaint, made pursuant to 42 U.S.C.
1983, 1985 and 1986, alleges that the defendants deprived Frazier of his
right to procedural due process under the Fifth and Fourteenth Amendments by,
inter alia, (i) depriving him of the opportunity to challenge his pre-hearing
confinement to the prison's Special Housing Unit; (ii) placing him in the
prison's Close Supervision Unit based on erroneous charges; (iii) improperly
conducting the hearing at which it was determined to place him in the Close
Supervision Unit; and (iv) placing erroneous information in his prison file.
Frazier also asserts a claim against defendant Coughlin, the Commissioner of
the Department of Corrections, for failing to intervene on his behalf. A bench
trial was conducted, and at the close of the evidence the district court dismissed
all of Frazier's claims.

We affirm the dismissal of Frazier's claims that his assignment to the Close
Supervision Unit and the Special Housing Unit violated his constitutional
rights, on the ground that Frazier has no protected liberty interest in remaining
in the general prison population under Sandin v. Conner, --- U.S. ----, 115 S.Ct.
2293, 132 L.Ed.2d 418 (1995). We affirm the dismissal of Frazier's other
claims for the reasons provided by the district court.

BACKGROUND
3

On February 28, 1992, staff members of the Eastern New York Correctional
Facility discovered eight hacksaw blades concealed in an envelope addressed to
inmate Frazier. Frazier was charged with violating prison regulations for being
the intended recipient of those hacksaw blades. Defendant R.J. Cunningham, a
deputy superintendent at Eastern New York, directed that Frazier be transferred
(pending an investigation) from the general prison population to the Special
Housing Unit (the "SHU"), a prison block that consists of several singleoccupancy cells. An inmate in the SHU is confined to his cell for up to twenty-

three hours per day, has limited recreational and vocational opportunities, and
has little or no contact with other prisoners. According to New York prison
regulations, an inmate may be assigned to the SHU while awaiting disposition
of disciplinary proceedings. N.Y. Comp.Codes. R. & Regs. tit. 7, 301.6(a)(1)
(1995).
4

In a search of Frazier's cell that was conducted later that day, corrections
officers found various items of contraband. Charges were filed against Frazier
for violating prison regulations against the possession of contraband. Defendant
George Ellison, a lieutenant at Eastern New York, set a date for a hearing on
the charges pertaining to the hacksaw blades and the contraband, and
determined that Frazier should remain in the SHU pending the hearing. On
March 2, 1992, Frazier was transferred from the SHU at Eastern New York to
the SHU at Shawangunk prison.

A hearing on the charges against Frazier was held on March 6, 1992, and was
concluded on March 10, 1992. Frazier was found guilty of the charges
pertaining to the contraband, but not guilty of the charges relating to the
hacksaw blades. Frazier was penalized by 30 days of confinement to his cell
(not the SHU) and 30 days loss of commissary, recreation, package and phone
privileges. That sentence was made retroactive to February 28.

On the day the hearing concluded, Superintendent Mann of the Shawangunk

prison directed that Frazier be moved from the SHU to a cell in the Close
Supervision Unit (the "CSU"). The CSU is less restrictive than the SHU. An
inmate assigned to a cell in the CSU is ineligible for certain jobs, but otherwise
enjoys the same conditions and privileges as a prisoner in the general
population. The CSU employs greater security measures than the general
population prison units, and houses inmates who have a history of violating
prison rules. A prisoner may be placed in the CSU for disciplinary reasons, but
may also be placed there at the discretion of the commissioner or
superintendent. Shawangunk's rules expressly state that a hearing is not
required for placement in the CSU.

On March 26, 1992, the CSU Screening Committee, chaired by defendant

Robert Cunningham, held a hearing at which Frazier appeared and testified.1
The committee recommended that Frazier remain in the CSU. On April 23,
1992, Frazier appealed that decision to Superintendent Mann.2 Around that
date, all evidence concerning the hacksaw blades and the resulting charge
against Frazier was expunged from Frazier's prison record, pursuant to his
request. In a letter dated May 26, 1992, Frazier requested that defendant
Thomas A. Coughlin, the Commissioner of the New York Department of

Corrections, intervene on his behalf in his appeal of his assignment to the CSU.
In a decision dated May 28, 1992, Mann denied Frazier's appeal. In a letter
dated June 19, 1992, Coughlin informed Frazier that he was deferring to
Mann's decision. On December 4, 1992, Frazier filed his complaint in district
court. On January 28, 1993, Frazier was removed from the CSU and placed in
the general prison population.
8

On December 6 and 7, 1994, a bench trial was held before Judge McCurn.
(Frazier was assisted by stand-by counsel.) At the close of the plaintiff's case,
the district court granted judgment as a matter of law, pursuant to Fed.R.Civ.P.
52(c), in favor of defendants Ellison, Mitchell and Raymond Cunningham. At
the close of the defendants' case, the district court granted judgment as a matter
of law in favor of defendant Coughlin. The district court reserved judgment on
the remaining claims. On December 8, the district court issued an oral decision
granting judgment as a matter of law on the remaining claims to the remaining
defendants.3

DISCUSSION
9

On appeal, Frazier contends that the district court erred in granting the
defendants judgment as a matter of law because: (i) Frazier's pre-hearing
confinement to the SHU for twelve days violated his right to procedural due
process; (ii) he had a constitutionally protected liberty interest in remaining free
from assignment to the CSU; (iii) the hearing held by the CSU Screening
Committee violated his right to procedural due process; (iv) he had a protected
liberty interest in expunging any erroneous information from his prison
records; and (v) the district court was required by Fed.R.Civ.P. 52 to issue
findings of fact or conclusions of law in support of its decision.4 We will
separately address each of these claims.

10

A. Pre-Hearing Confinement.

11

At the close of the plaintiff's case, the district court found that New York prison
regulations do not require that a prisoner who is awaiting disciplinary
proceedings be afforded a hearing prior to being placed in a Special Housing
Unit. The court therefore held that Frazier had no protected liberty interest in
remaining free from confinement in the SHU, and dismissed Frazier's claim
that he was deprived of procedural due process. In looking to state regulations,
the district court apparently applied the standard established in Hewitt v.
Helms, 459 U.S. 460, 470-71, 103 S.Ct. 864, 870-71, 74 L.Ed.2d 675 (1983),
for determining whether a prisoner has a protected liberty interest.

12

Subsequent to the district court's decision, the Supreme Court abandoned the
framework established in Hewitt for analyzing whether a prisoner who is
subjected to disciplinary confinement has been deprived of a liberty interest.
Sandin v. Conner, --- U.S. ----, ----, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418
(1995); see also Samuels v. Mockry, 77 F.3d 34, 36-38 (2d Cir. 1996)
(discussing Hewitt and Sandin ) (per curiam ); Rodriguez v. Phillips, 66 F.3d
470, 480 (2d Cir.1995) (same). Hewitt looked to state law and regulations to
determine the parameters of a prisoner's protected liberty interests. The
Supreme Court in Sandin

13
recognize[d]
that States may under certain circumstances create liberty interests
which are protected by the Due Process Clause. But these interests will be generally
limited to freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its
own force, nonetheless imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.
14

--- U.S. at ----, 115 S.Ct. at 2300 (citations omitted). Sandin held that the
respondent's confinement in a segregated housing unit for thirty days, "though
concededly punitive, does not present a dramatic departure from the basic
conditions of [his] indeterminate sentence." Id. at ----, 115 S.Ct. at 2301. Sandin
applies retroactively to this case. See Harper v. Virginia Dep't of Taxation, 509
U.S. 86, 95-97, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993) (a rule of federal
law "must be given full retroactive effect").

15

As we recently recognized, "Sandin may be read as calling into question the

continuing viability of our cases holding that New York regulations afford
inmates a liberty interest in remaining free from administrative segregation."
Rodriguez, 66 F.3d at 480. And nothing in Sandin suggests that a protected
liberty interest arises in the absence of a particular state regulation or statute
that (under Hewitt ) would create one.5 To prevail, Frazier must establish both
that the confinement or restraint creates an "atypical and significant hardship"
under Sandin, and that the state has granted its inmates, by regulation or by
statute, a protected liberty interest in remaining free from that confinement or
restraint.

16

The extensive fact-finding of the district court permits us to measure Frazier's

SHU claim by the standard of Sandin. Under that standard, Frazier has failed to
demonstrate a significant deprivation of a liberty interest because he has not
shown that the conditions of his confinement in the SHU were dramatically
different from the "basic conditions of [his] indeterminate sentence." Sandin, --U.S. at ----, 115 S.Ct. at 2301. Frazier was confined in the SHU for

approximately twelve days while awaiting the disposition of disciplinary

proceedings. While in the SHU, Frazier was denied certain privileges that
prisoners in the general population enjoy. But, as in Sandin, the conditions of
that confinement fell "within the expected parameters of the sentence imposed
by a court of law." Id. And the extensive proof adduced at trial concerning the
conditions of Frazier's confinement in the SHU demonstrate that such
confinement did not amount to the "type of atypical, significant deprivation in
which [New York] might conceivably create a liberty interest." Id.
Furthermore, Frazier points to no proof that might establish that "the State's
action will inevitably affect the duration of his sentence." Id. at ----, 115 S.Ct. at
2302. Thus, Frazier cannot establish a protected liberty interest in remaining in
the general prison population, and dismissal of his procedural due process
claim was proper.
17

B. Close Supervision Unit Confinement.

18

Frazier next contends that the district court erred in holding that he had no
liberty interest under Hewitt in remaining free from confinement in the CSU.
Although we examine this issue in light of Sandin, we arrive at the same result
as the district court.

19

It is true that Frazier remained in the CSU for eleven months before being
assigned to the general prison population at Shawangunk. But inmates in the
CSU are confined to their cells for the same amount of time per day as inmates
in the general prison population. Moreover, it was undisputed at trial that the
only substantive differences between confinement in the CSU and in the
general prison population are (i) that prisoners in the CSU are ineligible for
certain prison jobs, and (ii) that additional corrections officers may be assigned
to the CSU. Frazier's contention that, while confined in the CSU, he was
constitutionally deprived of a job in the prison's laundry is without merit, since
in New York a prisoner has no protected liberty interest in a particular job
assignment. See Cooper v. Smith, 99 A.D.2d 644, 471 N.Y.S.2d 932, 933 (4th
Dep't), aff'd, 63 N.Y.2d 615, 479 N.Y.S.2d 519, 468 N.E.2d 701 (1984). In any
event, testimony adduced at trial indicated that Frazier was ineligible to work in
the laundry because of previous infractions of prison rules. As to the
assignment of additional corrections officers, there is no claim here that New
York confers upon inmates a protected liberty interest in controlling the number
and deployment of corrections personnel at various places in the prison. Thus,
the evidence at trial establishes that Frazier's confinement to the CSU imposed
on him no "atypical and significant hardship ... in relation to the ordinary
incidents of prison life." Sandin, --- U.S. at ----, 115 S.Ct. at 2300.

20

Frazier also contends that the hearing conducted by the CSU Screening
Committee lacked necessary procedural protections, and that he was not
provided with advance notice of the hearing. However, since Frazier failed to
establish that he had a protected liberty interest in remaining free from
confinement in the CSU under Sandin, he cannot assert a claim that he was
denied due process in the procedures that confined him there.

21

C. The Allegedly Erroneous Information.

22

Frazier argues that he has a right, conferred by New York prison regulations,
New York case authority, and the Due Process Clause, to have his prison
records remain free of erroneous information. We do not reach the issue of
whether Frazier has such a right, because we agree with the district court that
the information contained in Frazier's prison file is accurate.

23

Frazier contends that the charges pertaining to the hacksaw blades, which were
expunged from his prison records on March 19, 1992, were later reintroduced
into his records through two memoranda written by Shawangunk prison
officials. But, as the district court found, one of those memoranda accurately
states that Frazier's transfer from Eastern New York prison to Shawangunk was
based on his "suspected involvement in introducing escape paraphernalia" (the
hacksaw blades). Similarly, the other memorandum accurately states that
"while [Frazier was] housed at Eastern C.F. [,] escape paraphernalia was sent
into the facility in a package destined for [Frazier]." These statements do not
refer to the charges that were lodged against Frazier in connection with the
hacksaw blades. Moreover, on appeal Frazier does not contend that the above
statements are inaccurate. Thus, assuming arguendo that Frazier has a protected
interest in ensuring that his prison records remain accurate, he has not shown
that his file contains any inaccuracies, and his claim was properly dismissed.

24

D. Fed.R.Civ.P. 52.

25

Rule 52 requires that a district court, in entering judgment as a matter of law,

"shall find the facts specially and state separately its conclusions of law
thereon." Fed.R.Civ.P. 52(a). Frazier contends that the district court failed to
comply with that requirement. At the close of the plaintiff's evidence, however,
the district court made extensive findings of fact regarding New York
regulations and the defendants' role in placing Frazier in the SHU. At the close
of trial, the court made further findings of fact regarding Shawangunk's prison
regulations, Frazier's prison record and conditions in the Close Supervision
Unit. On December 8, 1994, the district court issued a thorough oral opinion

that sets forth the legal basis for granting the defendants judgment as a matter
of law. These findings are entirely sufficient to support the dismissal of these
claims. Frazier's claim that the district court did not comply with Rule 52 is
therefore meritless.
CONCLUSION
26

The judgment of the district court is affirmed.

According to Shawangunk's rules, the CSU Screening Committee may

recommend to the superintendent that an inmate be assigned to the CSU

Frazier claimed at trial that he did not receive a copy of the decision of the CSU
Screening Committee until April 23

The district court also determined, as an alternative ground for its decision, that
defendants Mann and Robert F. Cunningham were entitled to qualified
immunity

Frazier also contests the district court's decision to dismiss the claims against
Mann and Robert Cunningham on the alternative ground that they were entitled
to qualified immunity. Because we affirm dismissal of those claims on other
grounds, we do not reach the issue of qualified immunity

The Supreme Court in Sandin stated that its decision "does not technically
require us to overrule any holding of this Court." --- U.S. at ---- n. 5, 115 S.Ct.
at 2300 n. 5. The Court noted that its decision "only abandons an approach that
in practice is difficult to administer and which produces anomalous results." Id